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SEPARATION of SYNAGOGUE and STATE in ISRAEL Daniel Altaras

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SEPARATION of SYNAGOGUE and STATE in ISRAEL Daniel Altaras SEPARATION OF SYNAGOGUE AND STATE IN ISRAEL Daniel Altaras TABLE OF CONTENTS I. INTRODUCTION ................................................................................................................. 134 II. LEGAL BACKGROUND TO RELIGION IN ISRAEL................................................................. 137 A. Status Quo Agreement ............................................................................................. 137 B. Chief Rabbinate of Israel .......................................................................................... 139 C. Foundations of Law Statute ...................................................................................... 140 D. Jewish Law in Israel’s Supreme Court..................................................................... 140 E. Israel as a Jewish and Democratic State ................................................................... 142 F. Israel’s Jewish Nation-State Bill............................................................................... 144 III. RELIGION AND STATE ISSUES IN ISRAEL ......................................................................... 146 A. Freedom of Religion ................................................................................................ 146 B. Marriage and Divorce ............................................................................................... 147 C. Women’s Rights ....................................................................................................... 147 D. Law of Return .......................................................................................................... 149 IV. THE HISTORICAL FRAMEWORK TO ISRAEL’S IDENTITY AS BOTH JEWISH AND DEMOCRATIC ............................................................................................................................................ 150 B. The Secularization of Human Rights ....................................................................... 154 V. MORALITY: OBLIGATIONS VERSUS RIGHTS ..................................................................... 156 VI. SEPARATION OF SYNOGOGUE AND STATE IN ISRAEL ...................................................... 158 VII. CONCLUSION ................................................................................................................ 163 “Accordingly we, members of the People’s Council, Representatives of the Jewish community of Eretz-Israel and of the Zionist movement, are here assembled on the day of the termination of the British Mandate over Eretz-Israel and, by virtue of our natural and historic right and on the strength of the resolution of the United Nations General Assembly, hereby declare the establishment of a Jewish State in Eretz-Israel, to be known as the State of Israel.”1 1 THE DECLARATION OF THE ESTABLISHMENT OF THE STATE OF ISRAEL (May 14, 1948), https://mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/declaration%20of%20establishment %20of%20state%20of%20israel.aspx [hereinafter DECLARATION OF THE ESTABLISHMENT OF THE STATE OF ISRAEL]. 134 Arizona Journal of International & Comparative Law Vol. 36, No. 2 2019 I. INTRODUCTION David Ben-Gurion, the primary founder and, later, first Prime Minister of Israel, uttered these historic words on May 14, 1948.2 On that day, the British Mandate of Palestine expired, and the Jewish People's Council gathered to declare the establishment of the State of Israel.3 Ben-Gurion declared the State of Israel at the Tel Aviv Museum beneath a large portrait of Theodor Herzl, the father of modern political Zionism.4 Herzl’s dream had finally been realized, and, for the first time in nearly two thousand years, Jews regained sovereignty in the land of Israel.5 While the declaration was explicit that this new State would “ensure complete equality of social and political rights to all its inhabitants irrespective of religion,”6 it also referred to the fledgling country as a “Jewish State.”7 The tension between Israel’s insistence on full democratic rights alongside a uniquely Jewish character to the State has been around since its beginning.8 The signatories to the declaration placed their faith in the “Rock of Israel.”9 Religious signers believed this phrase was a thinly veiled reference to God, while the secular signers believed the term symbolized the heritage of the Jewish people.10 The balance between Israel’s religious and democratic natures has led to a variety of societal issues. There are instances of governmental and legal discrimination against non-Jews and non-Orthodox Jewish denominations.11 There is no secular marriage in Israel.12 Most people that wish to marry in Israel 2 DECLARATION OF THE ESTABLISHMENT OF THE STATE OF ISRAEL, supra note 1. 3 SHIMON PERES & DAVID LANDAU, BEN-GURION: A POLITICAL LIFE 220 (2011). 4 Zionism is a nationalist and political movement of Jews and Jewish culture that supports the reestablishment of a Jewish homeland in the territory defined as the historic Land of Israel. See 2 ENCYCLOPEDIA OF NATIONALISM: LEADERS, MOVEMENTS, AND CONCEPTS 604 (Alexander J. Motyl et al. eds., 2001). 5 Jewish autonomy in the Land of Israel was crushed after the Third Jewish Revolt against the Roman Empire in 136 CE and had been ruled by Non-Jews until the establishment of the State of Israel. See Werner Eck, The Bar Kokhba Revolt: The Roman Point of View, 89 J. ROMAN STUD. 76, 87−88 (1999). 6 See DECLARATION OF THE ESTABLISHMENT OF THE STATE OF ISRAEL, supra note 1. 7 See id. 8 STEVEN V. MAZIE, ISRAEL'S HIGHER LAW: RELIGION AND LIBERAL DEMOCRACY IN THE JEWISH STATE 25 (2006). 9 See DECLARATION OF THE ESTABLISHMENT OF THE STATE OF ISRAEL, supra note 1. 10 See MAZIE, supra note 8, at 41. 11 BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, U.S. DEP’T OF STATE, ISRAEL AND THE OCCUPIED TERRITORIES: INTERNATIONAL RELIGIOUS FREEDOM REPORT 2009 (2009) [hereinafter ISRAEL AND THE OCCUPIED TERRITORIES]. 12 See Information and Resources on Marriage in Israel: Freedom of Choice in Marriage, JEWISH FED’N OF N. AM. http://www.jewishfederations.org/Marriage-in- Israel.aspx (last updated May 10, 2015) [hereinafter Information and Resources on Marriage in Israel: Freedom of Choice in Marriage]. Separation of Synagogue and State in Israel 135 must do so through a religious ceremony, even non-religious couples.13 The fact that many aspects of Israeli life are governed by religious law allows for certain types of discrimination against women. Women must yield to traditional Orthodox interpretation of religious law in the public sphere.14 However, the biggest religion and state issue in Israel involves the Chief Rabbinate. The Chief Rabbinate of Israel is legally recognized as the supreme religious and spiritual authority for the Jewish people in Israel.15 The Chief Rabbinate has jurisdiction over many aspects of religious life for Jews in the State of Israel.16 The problem with the Chief Rabbinate is that it does not represent all of Israeli Jewry.17 It does not even represent a majority of the Israeli Jewish population.18 Nearly half of all Israeli Jews identify as secular, and only a minority identify as religious in any form.19 The recent nation-state bill controversy has brought these tensions between Israel’s democratic and Jewish identity to the forefront.20 On November 19, 2014, the Israeli cabinet decided to support a Jewish nation-state bill in a preliminary vote in the Knesset (Israel’s parliament).21 On May 10, 2017, the Knesset approved a preliminary reading of the bill which was then reviewed by the Knesset’s Constitution, Law, and Justice Committee in preparation for a first reading vote in the Knesset.22 On July 19, 2018, Israel passed the Jewish nation- state bill into law.23 The law states that Israel is the nation-state of the Jewish people in an attempt to enshrine the Jewish character of the State into law.24 Critics fear that the legislation will advance Israel’s Jewish character over its democratic character.25 However, the solution to Israel’s religion and state issues is not to advance one over the other. The answer lies in the complete separation between religion and state while Israel still maintains its Jewish character. 13 Information and Resources on Marriage in Israel: Freedom of Choice in Marriage, supra note 12. 14 See ISRAEL AND THE OCCUPIED TERRITORIES, supra note 11. 15 See generally Chief Rabbinate of Israel Law, 5740−1980 (1980) [hereinafter Chief Rabbinate of Israel Law]. 16 Id. ¶ 2. 17 Israel 2010: 42% of Jews are Secular, YNETNEWS.COM (May 18, 2010), http://www.ynetnews.com/articles/0,7340,L-3890330,00.html [hereinafter Israel 2010]. 18 Id. 19 Id. 20 See infra Part II, Sections E−F. 21 See infra Part II, Sections E−F. 22 See infra Part II, Sections E−F. 23 See infra Part II, Sections E−F. 24 See infra Part II, Sections E−F. 25 See infra Part II, Sections E−F. 135 136 Arizona Journal of International & Comparative Law Vol. 36, No. 2 2019 Western notions of human dignity, equality, and freedom can trace their origins to ancient Biblical laws.26 The Hebrew Bible and later Jewish writings were revolutionary in terms of their insistence on personal autonomy and individual liberties.27 In fact, the Israeli declaration pays homage to the Jewish people’s ancestral contribution to human rights when it states that Israel “will be based on freedom, justice and peace as envisaged by the prophets of Israel.”28 Although the foundations of modern human rights are religious in origin, today these rights should not be legislated or implemented under a religious legal code. Individual
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